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Orgonita
Orgonita
Original: English
Summary
In the present report, the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment examines conceptual, definitional and interpretative
questions arising in relation to the notion of “psychological torture” under human rights
law.
* The present report was submitted after the deadline so as to include the most recent information.
GE.20-04273(E)
A/HRC/43/49
Contents
Page
I. Introduction ...................................................................................................................................... 3
II. Activities relating to the mandate ..................................................................................................... 3
III. Psychological torture ........................................................................................................................ 3
A. Background .............................................................................................................................. 3
B. Concept of psychological torture ............................................................................................. 6
C. Applying the constitutive elements .......................................................................................... 8
D. Predominant methods of psychological torture ....................................................................... 12
E. Cybertorture ............................................................................................................................. 18
IV. Conclusions and recommendations .................................................................................................. 20
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I. Introduction
1. The present report was prepared pursuant to Human Rights Council resolution
34/19.
A. Background
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1 Linda Piwowarczyk, Alejandro Moreno and Michael Grodin, “Health care of torture survivors”,
Journal of the American Medical Association (JAMA), vol. 284, No. 5 (2 August 2000).
2 Jonathan D. Moreno, “Acid brothers: Henry Beecher, Timothy Leary, and the psychedelic of the
century”, Perspectives in Biology and Medicine, vol. 59, No. 1 (Winter 2016), pp. 108–109.
3 Most notably, “Project MKUltra, the CIA’s Programme of Research in Behavioural Modification”
(1953–1973).
4 United States of America, Central Intelligence Agency, KUBARK Counterintelligence Interrogation
(1963), sect. IX; United States, Central Intelligence Agency; Human Resource Exploitation Training
Manual (1983); United Kingdom of Great Britain and Northern Ireland, “Deep interrogation (five
techniques)”, litigated at the European Court of Human Rights, Ireland v. the United Kingdom,
Application No. 5310/71, Judgment, 18 January 1978; President of France, Emmanuel Macron,
statement on the death of Maurice Audin, 13 September 2018, recognizing that successive French
Governments had operated a system of political torture and disappearances in Algeria; Lawrence E.
Hinkle, Jr. and Harold G. Wolff, “Communist interrogation and indoctrination of ‘enemies of the
state’: analysis of methods used by the communist state police – a special report”, American Medical
Association Archives of Neurology and Psychiatry, vol. 76, No. 2 (August 1956); and Scott Shane,
“U.S. interrogators were taught Chinese coercion techniques”, New York Times, 2 July 2008.
5 United States, Senate Select Committee on Intelligence, Committee Study of the Central Intelligence
Agency’s Detention and Interrogation Program (2014).
6 CAT/C/CHN/CO/5, para. 42; as well as two communications co-signed by the Special Rapporteur,
communications Nos. OL/CHN18/2019, 1 November 2019, and OL/CHN15/2018, 24 August 2018.
See also “China cables”, available at www.icij.org/investigations/china-cables/read-the-china-cables-
documents/.
7 See, most prominently, the communications sent by the Special Rapporteur and his predecessor in the
cases of Bradley/Chelsea Manning, communications Nos. UA G/SO 214 (53-24) USA 8/2011, 15
June 2011; and No. AL USA 22/2019, 1 November 2019); and Julian Assange, communications No.
UA/GBR/3/2019, 27 May 2019; and No. UA GBR 6/2019, 29 October 2019).
8 See, for example, A/74/148, paras. 32–34; A/59/324, para. 17; and E/CN.4/2006/120, para. 52.
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and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) and
raised awareness of the challenges of psychological torture in numerous individual
communications. On 26 June 2019, on the occasion of the International Day in Support of
Victims of Torture, the Special Rapporteur launched his thematic consultations on the topic
at a side event of the forty-first session of the Human Rights Council including an expert
panel on the “Fault lines between non-coercive investigation and psychological torture” and
the screening of “Eminent Monsters”, a documentary film on the origins and devastating
effects of contemporary psychological torture.9
14. Although these initiatives have been generally well received by States, national
practice still tends to deny, neglect, misinterpret or trivialize psychological torture as what
could be euphemistically described as “torture light”, whereas “real torture” is still
predominantly understood to require the infliction of physical pain or suffering (so-called
“materialist bias”). 10 Some States have even adopted national definitions of torture
excluding mental pain or suffering, or interpretations requiring that, in order to constitute
torture, mental pain or suffering must be caused by the threat or infliction of physical pain
or suffering, threats of imminent death, or profound mental disruption. Both the Committee
against Torture and mandate holders have rejected these approaches as contrary to the
Convention against Torture. 11 Beyond that, however, the use of the term “psychological
torture” in jurisprudence and human rights advocacy remains fragmented, and both legal
and medical experts have long called for its clarification. 12
15. In the light of these considerations, in the present report, the Special Rapporteur:
(a) Examines the predominant conceptual discrepancies arising in relation to the
notion of “psychological torture”;
(b) Proposes working definitions of “psychological” and “physical” torture from
the perspective of international human rights law;
(c) Offers recommendations regarding the interpretation of the constitutive
elements of torture in the context of psychological torture;
(d) Proposes a non-exhaustive, needs-based analytical framework facilitating the
identification of specific methods, techniques or circumstances amounting or contributing
to psychological torture;
(e) Illustrates how various combinations of methods, techniques and
circumstances – not all of which may amount to torture if taken in isolation and out of
context – can form “torturous environments” violating the prohibition of torture;
(f) Encourages the interpretation of the prohibition of torture in line with
contemporary possibilities and challenges arising from emerging technologies and explores,
in a preliminary manner, the conceivability and basic contours of what could be described
as “cybertorture”.
9 See www.hopscotchfilms.co.uk/news/2019/7/26/eminent-monsters-to-be-screened-at-a-united-
nations-side-event.
10 David Luban and Henry Shue, “Mental torture: a critique of erasures in U.S. law”, Georgetown Law
Journal, vol. 100, No. 3 (March 2012).
11 A/HRC/13/39/Add.5, para. 74; CAT/C/USA/CO/3-5, para. 9; CAT/C/GAB/CO/1, para. 7;
CAT/C/RWA/CO/1, para. 7; CAT/C/CHN/CO/4, para. 33; and CAT/C/CHN/CO/5, para. 7.
12 See, for example, Pau Pérez-Sales, Psychological Torture: Definition, Evaluation and Measurement
(London, Routledge, 2017); Hernán Reyes, “The worst scars are in the mind: psychological torture”,
International Review of the Red Cross, vol. 89, No. 867 (September 2007); Ergun Cakal, “Debility,
dependency and dread: on the conceptual and evidentiary dimensions of psychological torture”,
Torture, vol. 28, No. 2 (2018); Almerindo E. Ojeda, ed., The Trauma of Psychological Torture (West
Port, Connecticut, Praeger Publishers, 2008); Nora Sveaass, “Destroying minds: psychological pain
and the crime of torture”, City University of New York Law Review, vol. 11, No. 2 (Summer 2008),
p. 303; and Metin Başoğlu, ed., Torture and its Definition in International Law: An Interdisciplinary
Approach (New York, Oxford University Press, 2017), pp. 397 and 492.
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16. The Special Rapporteur has conducted extensive research and stakeholder
consultations, including through an open call for contributions by questionnaire. 13 The
present report reflects the resulting conclusions and recommendations of the Special
Rapporteur. Given the substantive scope and complexity of the topic and the applicable
constraints in terms of time and word-count, he examines the notion of psychological
“torture” only. As, in practice, “torture” and “other cruel, inhuman or degrading treatment
or punishment” are often closely interlinked, further research efforts should be undertaken
to clarify the broader topic of psychological ill-treatment.
1. Working definition
17. “Psychological torture” is not a technical term in international law, but has been
used in various disciplines, including legal, medical, psychological, ethical, philosophical,
historical and sociological, for different purposes and with varying interpretations. The
Special Rapporteur acknowledges that all these understandings have their own legitimacy,
validity and purpose in their respective fields. In line with the mandate bestowed upon him,
in the present report he examines the concept of “psychological torture” from the
perspective of international human rights law.
18. According to article 1 of the Convention against Torture, the substantive concept of
“torture” comprises, most notably, the intentional and purposeful infliction of severe pain
or suffering “whether physical or mental”. It is this explicit juxtaposition of “mental” and
“physical” pain or suffering which is generally referred to as the legal basis for the concept
of psychological torture. Accordingly, in human rights law, “psychological” torture is most
commonly understood as referring to the infliction of “mental” pain or suffering, whereas
“physical” torture is generally associated with the infliction of “physical” pain or
suffering.14
19. In line with this position, shared by previous mandate holders (E/CN.4/1986/15,
para. 118), the Special Rapporteur is of the view that, under human rights law,
“psychological torture” should be interpreted to include all methods, techniques and
circumstances which are intended or designed to purposefully inflict severe mental pain or
suffering without using the conduit or effect of severe physical pain or suffering. The
Special Rapporteur is further of the view that “physical torture” should be interpreted to
include all methods, techniques and environments intended or designed to purposefully
inflict severe physical pain or suffering, regardless of the parallel infliction of mental pain
or suffering.
13 See www.ohchr.org/Documents/Issues/Torture/Call/QuestionnairePsychologicalTorture.docx.
14 Luban and Shue, “Mental torture”.
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or wrongfulness, but to clarify to what extent the generic prohibition of torture covers
methods not using the conduit or effect of severe physical pain or suffering.
22. Second, the discussion of psychological methods (i.e., techniques) of torture should
not be conflated with that of the psychological effects (i.e., sequelae) of torture. In reality,
both physical and psychological methods of torture each have both physical and
psychological effects (E/CN.4/1986/15, para. 118). Thus, the infliction of physical pain or
suffering almost invariably also causes mental suffering, including severe trauma, anxiety,
depression and other forms of mental and emotional harm. Likewise, the infliction of
mental pain or suffering also affects bodily functions and, depending on intensity and
duration, can cause irreparable physical harm or even death, including through nervous
collapse or cardiovascular failure. In terms of severity, psychological and physical stressors
have been shown to inflict equally severe suffering (A/HRC/13/39, para. 46). 15 From a
psychophysiological perspective, therefore, the distinction between “physical” and
“psychological” torture is of predominantly conceptual, analytical and pedagogic benefit
and does not suggest the parallel existence, in practice, of two separate and mutually
exclusive dimensions of torture, or of any hierarchy of severity between “physical” and
“psychological” torture.
23. A third, distinct aspect of the psychological dimension of torture is its inherently
psychological rationale (i.e., target). From a functional perspective, any form of torture
deliberately instrumentalizes severe pain and suffering as a vehicle for achieving a
particular purpose (A/72/178, para. 31). Methodologically, these purposes can be pursued
through the infliction of “physical” or “mental” pain or suffering, or a combination thereof,
and in each case will cause varying combinations of physical and psychological effects.
Functionally, however, torture is never of an exclusively physical character, but always
aimed at affecting the minds and emotions of victims or targeted third persons. 16 Many
methods of physical torture deliberately create and exploit debilitating inner conflicts, for
example by instructing captives to remain in physically painful stress positions under the
threat of rape in case of disobedience. A similar inner conflict can be induced without
physical pain, for example, by instructing the detainee to masturbate in front of guards and
inmates, again under threat of rape in case of disobedience. Thus, the distinction between
“physical” and “psychological” torture does not imply any difference in functional rationale
but, rather, refers to the methodological avenue through which that rationale is being
pursued by the torturer.
3. Distinguishing psychological from physical “no marks” and “no touch” torture
24. While methods of torture entailing visible bodily injury are generally not referred to
as “psychological torture”, the term is sometimes conflated with “no marks” torture, the
aim of which is to avoid visible traces on the victim’s body, and with “no touch” torture,
the aim of which is to avoid inflicting pain or suffering through direct physical interaction.
In reality, however, both “no marks” torture and “no touch” torture may also be of a
physical nature and, in that case, are distinct from psychological torture.
25. More specifically, although the aim of physical “no-marks” torture is to avoid
visible traces on the victim’s body, its purposes are still pursued through the deliberate
infliction of severe physical pain or suffering. Some physical “no marks” techniques
achieve the intended physical pain or suffering immediately and directly, such as beatings
with insulated objects on selected parts of the body, simulated drowning (“waterboarding”
or “wet submarine”) or asphyxiation with plastic bags (“dry submarine”). Other physical
“no marks” techniques involve the prolonged and/or cumulative infliction of initially “low
intensity” physical pain or suffering, calculated to gradually evolve to unbearable levels of
severity, such as forced standing or crouching, or shackling in stress positions. While all
these techniques are calculated to avoid physical marks visible to the naked eye and
inexpert observer, many of them still produce physical sequelae – such as swellings,
abrasions, contusions and irritations – which experienced forensic experts can reliably
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detect and document for periods ranging from days to several weeks. In practice, however,
obstruction and delays, as well as lack of expertise, capacity and willingness on the part of
the investigative authorities, entail that the vast majority of allegations regarding “no
marks” torture are either not investigated at all, or are easily dismissed for lack of evidence.
26. Likewise, physical “no-touch” torture avoids direct physical interaction, but still
intentionally manipulates or instrumentalizes physiological needs, functions and reactions
to inflict physical pain or suffering. It typically includes pain inflicted through threat-
imposed stress positions, or powerful sensory or physiological irritation through extreme
temperatures, loud noise, bright light or bad smells, deprivation of sleep, food or drink,
prevention or provocation of urination, defecation or vomiting, or exposure to
pharmaceutical substances or drug-withdrawal symptoms. Although these techniques
deliberately use the conduit of the victim’s body for the infliction of pain and suffering,
they are sometimes discussed as psychological torture, mainly because of their
psychological rationale and intended destabilizing effect on the human mind and emotions,
and the limited physical contact between the torturer and the victim. If “no-touch”
techniques inflict severe physical pain or suffering of any kind, however, they should be
regarded as physical torture.
27. The concept of psychological torture as defined above gives rise to a number of
questions concerning the interpretation of the defining elements constitutive of torture
beyond what has been stated in previous reports (A/72/178, para. 31; A/73/207, paras. 6–7;
and E/CN.4/2006/6, paras. 38–41). All these questions relate to the “substantive”
components of the definition, which define conduct that amounts to torture, whereas the
“attributive” component, which defines the level of State agent involvement required in
order for torture to give rise to State responsibility, has been discussed in depth in previous
reports and does not need to be re-examined here (A/74/148, para. 5).
17 Human Rights Committee, general comment No. 20 (1992) on the prohibition of torture, or other
cruel, inhuman or degrading treatment or punishment, para. 5; see also Committee against Torture,
case law, cited in footnote 11 above.
18 Pérez-Sales, Psychological Torture, p. 284.
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and resilience and contextual circumstances. 19 All these elements must be holistically
evaluated on a case-by-case basis and in the light of the specific purpose pursued by the
treatment or punishment in question. For instance, the threat of overnight detention
combined with verbal abuse may be sufficiently severe to coerce or intimidate a child,
whereas the same act may have little or no effect on an adult, and even less on a hardened
offender. The severity of pain or suffering resulting from a particular type of ill-treatment is
not necessarily constant but tends to increase or fluctuate with the duration of exposure and
the multiplication of stressors. Also, while torture constitutes an “aggravated” form of
cruel, inhuman or degrading treatment or punishment, 20 “aggravation” does not necessarily
refer to aggravated pain and suffering, but to aggravated wrong in terms of the intentional
and purposeful instrumentalization of pain and suffering for ulterior purposes. Thus, the
distinguishing factor between torture and other forms of ill-treatment is not the intensity of
the suffering inflicted, but rather the purpose of the conduct, the intention of the perpetrator
and the powerlessness of the victim (A/72/178, para. 30; and A/HRC/13/39, para. 60).21
31. Several treaty provisions even suggest that the concept of torture includes conduct
which, at least potentially, does not involve any subjectively experienced pain or suffering
at all. Thus, article 7 of the International Covenant on Civil and Political Rights expressly
prohibits “medical or scientific experimentation without free consent”. Although the
provision does not clarify whether such conduct would amount to “torture” or to other
“cruel, inhuman or degrading treatment”, its explicit mention suggests that it was regarded
as a particularly grave violation of the prohibition. Even more explicit in this respect, but
only of regional applicability, is article 2 of the Inter-American Convention to Prevent and
Punish Torture, which expressly defines “torture” as including “methods intended to
obliterate the personality of the victim or to diminish his physical or mental capacities, even
if they do not cause physical pain or mental anguish”. Relatedly, upon ratification of the
Convention against Torture, the United States expressed its understanding that “mental pain
or suffering” refers to “prolonged mental harm” caused by, inter alia, the threatened or
actual “administration or application of mind-altering substances or other procedures
calculated to disrupt profoundly the senses or the personality”, wording intended to ban
some of the interrogation methods developed by the United States Central Intelligence
Agency (CIA) during the cold war, but also to deliberately narrow the definition established
in the Convention.22 Although the Committee rejected this interpretation as too narrow and
stated that psychological torture cannot be limited to “prolonged mental harm”
(CAT/C/USA/CO/2, para. 13; and CAT/C/USA/CO/3-5, para. 9), it did not clarify whether
the use of “procedures calculated to disrupt profoundly the senses or the personality” could
amount to torture even in the absence of subjectively experienced pain or suffering. While
this was already a salient question for the drafters of the various treaty texts during the cold
war era, its practical relevance has increased exponentially in present times.
32. Given the rapid advances in medical, pharmaceutical and neurotechnological
science, as well as in cybernetics, robotics and artificial intelligence, it is difficult to predict
to what extent future techniques and environments of torture, as well as the “human
enhancement” of potential victims and perpetrators in terms of their mental and emotional
resilience, may allow the subjective experience of pain and suffering to be circumvented,
suppressed or otherwise manipulated while still achieving the purposes and the profoundly
19 Inter-American Court of Human Rights, Lysias Fleury and Others v. Haiti, Judgment, 23 November
2011, para. 73.
20 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 1.
21 Gerrit Zach, “Definition of torture”, in Manfred Nowak, Moritz Birk and Giuliana Monina, eds., The
United Nations Convention against Torture and its Optional Protocols: A Commentary, 2nd ed.
(Oxford, United Kingdom of Great Britain and Northern Ireland, Oxford University Press, 2019), p.
47.
22 David Luban and Katherine S. Newell, “Personality disruption as mental torture: the CIA,
interrogational abuse, and the U.S. Torture Act”, Georgetown Law Journal, vol. 108, No. 2 (January
2020), pp. 335–336 and 373–374, referring to Title 18 of the United States Code, sect. 2340(2)(B),
2012.
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dehumanizing, debilitating and incapacitating effects of torture. 23 Given that States must
interpret and exercise their international obligations in relation to the prohibition of torture
in good faith (Vienna Convention on the Law of Treaties, arts. 26 and 31) and in the light
of the evolving values of democratic societies (A/HRC/22/53, para. 14), 24 it would appear
irreconcilable with the object and purpose of the universal, absolute and non-derogable
prohibition of torture, for example, to exclude from the definition of torture the profound
disruption of a person’s mental identity, capacity or autonomy only because the victim’s
subjective experience or recollection of “mental suffering” has been pharmaceutically,
hypnotically or otherwise manipulated or suppressed.
33. Previous Special Rapporteurs have stated that “assessing the level of suffering or
pain, relative in its nature, requires considering the circumstances of the case, including …
the acquisition or deterioration of impairment as result of the treatment or conditions of
detention in the victim”, and that “medical treatments of an intrusive and irreversible
nature”, when lacking a therapeutic purpose and enforced or administered without free and
informed consent, may constitute torture or ill-treatment (A/63/175, paras. 40 and 47; and
A/HRC/22/53, para. 32). Building on this legacy, the Special Rapporteur is of the view that
the threshold of severe “mental suffering” can be reached not only through subjectively
experienced suffering but, in the absence of subjectively experienced suffering, also
through objectively inflicted mental harm alone. In any case, even below the threshold of
torture, the intentional and purposeful infliction of mental harm would almost invariably
amount to “other cruel, inhuman or degrading treatment or punishment”.
2. Intentionality
34. Psychological torture requires the intentional infliction of mental pain or suffering
and thus does not include purely negligent conduct. Intentionality does not require that the
infliction of severe mental pain or suffering be subjectively desired by the perpetrator, but
only that it be reasonably foreseeable as a result, in the ordinary course of events, of the
purposeful conduct adopted by the perpetrator (A/HRC/40/59, para. 41; and A/HRC/37/50,
para. 60). Further, intentionality does not require proactive conduct, but may also involve
purposeful omissions, such as the exposure of substance-addicted detainees to severe
withdrawal symptoms by making the replacement medication or therapy dependent on a
confession, testimony or other cooperation (A/73/207, para. 7). Where the infliction of
severe mental pain or suffering may result from the cumulative effect of multiple
circumstances, acts or omissions on the part of several participants, such as in the case of
mobbing, persecution and other forms of concerted or collective abuse, the required
intentionality would have to be regarded as present for each State or individual knowingly
and purposefully contributing to the prohibited outcome, whether through perpetration,
attempt, complicity or participation (Convention, art. 4 (1)).
3. Purposefulness
35. In order to amount to psychological torture, severe mental pain or suffering must be
inflicted not only intentionally, but also “for purposes such as obtaining from the victim or
a third person information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him or a third
person”, or “for any reason based on discrimination of any kind” (Convention, art. 1).
Although the listed purposes are only of an indicative nature and not exhaustive, relevant
purposes should have “something in common with the purposes expressly listed”
(A/HRC/13/39/Add.5, para. 35). At the same time, the listed purposes are phrased so
broadly that it is difficult to envisage a realistic scenario of purposeful infliction of severe
23 A/HRC/23/47, para. 54; Adam Henschke, ‘“Super soldiers’: ethical concerns in human enhancement
technologies”, Humanitarian Law and Policy blog, 3 July 2017; and Nayef Al-Rodhan, “Inevitable
transhumanism? How emerging strategic technologies will affect the future of humanity”, Center for
Security Studies blog, 29 October 2013.
24 Office of the United Nations High Commissioner for Human Rights (OHCHR), “Interpretation of
torture in light of the practice and jurisprudence of international bodies”, 2011, p. 8.
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mental pain or suffering on a powerless person that would escape the definition of torture
(A/72/178, para. 31).
36. While the interpretation of purposes such as “interrogation”, “punishment”,
“intimidation” and “coercion” is fairly straightforward, the way “discrimination” is
addressed in the Convention requires clarification, because it is the only qualifier not
crafted in terms of a deliberate “purpose”. In order for discriminatory measures to amount
to torture, it is sufficient that they intentionally inflict severe pain or suffering “for reasons
related to discrimination of any kind”. It is therefore not required that the relevant conduct
have a discriminatory “purpose”, but only a discriminatory “nexus”. As a matter of treaty
law, this includes any distinction, exclusion or restriction on the basis of discrimination of
any kind, which has either the purpose or the effect of impairing or nullifying the
recognition, enjoyment or exercise, on an equal basis with others, of any human right or
fundamental freedom in the political, economic, social, cultural, civil or any other field
(A/63/175, para. 48).25
37. It must be stressed that purportedly benevolent purposes cannot, per se, vindicate
coercive or discriminatory measures. For example, practices such as involuntary abortion,
sterilization, or psychiatric intervention on the grounds of “medical necessity” or the “best
interests” of the patient (A/HRC/22/53, paras. 20 and 32–35; and A/63/175, para. 49), or
forcible internment for the “re-education” of political or religious dissidents,26 the “spiritual
healing” of mental illnesses (A/HRC/25/60/Add.1, paras. 72–77), or for “conversion
therapy” related to gender identity or sexual orientation (A/74/148, paras. 48–50), generally
involve highly discriminatory and coercive attempts at controlling or “correcting” the
victim’s personality, behaviour or choices and almost always inflict severe pain or
suffering. In the view of the Special Rapporteur, therefore, if all other defining elements are
present, such practices may well amount to torture.
38. Last but not least, given that information gathering is an intrinsic part of legitimate
investigative and fact-finding processes, it is necessary to clarify the fault lines between
permissible non-coercive investigative techniques and prohibited coercive interrogation.
Although of great practical importance, this particular distinction will not be discussed in
the present report, as it has already been examined in depth in a full thematic report
submitted by the previous Special Rapporteur (A/71/298), triggering an important and
ongoing process of developing international guidelines on investigative interviewing and
associated safeguards.27
4. Powerlessness
39. Mandate holders have consistently held that, although not expressly mentioned in
the treaty text, the “powerlessness” of the victim is a defining prerequisite of torture
(A/63/175, para. 50; A/73/207, para. 7; A/HRC/13/39, para. 60; and A/HRC/22/53, para.
31). As has been shown, “all purposes listed in article 1 of the Convention against Torture,
as well as the travaux préparatoires of the Declaration and the Convention, refer to a
situation where the victim of torture is a detainee or a person ‘at least under the factual
power or control of the person inflicting the pain or suffering’, and where the perpetrator
uses this unequal and powerful situation to achieve a certain effect, such as the extraction of
information, intimidation, or punishment”.28
25 Convention on the Rights of Persons with Disabilities, art. 2; Convention on the Elimination of All
Forms of Discrimination against Women, art. 1; International Convention on the Elimination of All
Forms of Racial Discrimination, art. 1; Universal Declaration of Human Rights, art. 7; and
International Covenant on Civil and Political Rights, art. 26.
26 CAT/C/CHN/CO/5, para. 42; as well as two communications co-signed by the Special Rapporteur,
communications Nos. OL/CHN18/2019, 1 November 2019, and OL/CHN15/2018, 24 August 2018.
See also “China cables”, available at www.icij.org/investigations/china-cables/read-the-china-cables-
documents/.
27 See www.apt.ch/en/universal-protocol-on-non-coercive-interviews/.
28 Zach, “Definition of torture”, pp. 56–59. See also, Rome Statute of the International Criminal Court,
art. 7 (2) (e).
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40. In practice, “powerlessness” arises whenever someone has come under the direct
physical or equivalent control of the perpetrator and has effectively lost the capacity to
resist or escape the infliction of pain or suffering (A/72/178, para. 31). This is typically the
case in situations of physical custody, such as arrest and detention, institutionalization,
hospitalization or internment, or any other form of deprivation of liberty. In the absence of
physical custody, powerlessness can also arise through the use of body-worn devices
capable of delivering electric shocks through remote control, given that they cause the
“complete subjugation of the victim irrespective of physical distance” (A/72/178, para. 51).
A situation of effective powerlessness can further be achieved through “deprivation of legal
capacity, when a person’s exercise of decision-making is taken away and given to others”
(A/63/175, para. 50; and A/HRC/22/53, para. 31), through serious and immediate threats, or
through coercive control in contexts such as domestic violence (A/74/148, paras. 32–34),
through incapacitating medication and, depending on the circumstances, in collective social
contexts of mobbing, cyberbullying and State-sponsored persecution depriving victims of
any possibility of effectively resisting or escaping their abuse.
43. In the present section, the Special Rapporteur aims to provide an overview of the
characteristics, rationale and effects of some of the most predominant methods of
psychological torture. In contrast to physical torture, which uses the body and its
physiological needs as a conduit for affecting the victim’s mind and emotions,
psychological torture does so by directly targeting basic psychological needs, such as
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33 For other categorizations see, for example, Almerindo E. Ojeda, “What Is psychological torture?”, in
Ojeda, ed., The Trauma of Psychological Torture, pp.1–2; and Pérez-Sales, Psychological Torture,
pp. 257–258.
34 Pérez-Sales, Psychological Torture, p. 284.
35 A/56/156, paras. 3 and 7–8; E/CN.4/1986/15, para. 119; and E/CN.4/1998/38, para. 208.
36 CAT/C/KAZ/CO/2, para. 7; and CAT/C/USA/CO/2, para. 24.
37 European Court of Human Rights, Grand Chamber, Gäfgen v. Germany, Application No. 22978/05,
Judgment, 1 June 2010, para. 108.
38 Human Rights Committee, communication No. 74/1980, views of the Committee in the case of
Miguel Angel Estrella v. Uruguay, para. 8.3.
39 Inter-American Court of Human Rights, Baldeón-García v. Perú, Judgment, 6 April 2006, para. 119;
and Inter-American Court of Human Rights, Tibi v. Ecuador, Judgment, 7 September 2004, paras.
147–149).
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more debilitating and agonizing than the actual materialization of that fear, and even the
experience of physical torture can be experienced as less traumatizing than the indefinite
psychological torment of constant fear and anxiety. In particular, credible and immediate
threats have been associated with severe mental suffering, post-traumatic stress disorder,
but also chronic pain and other somatic (i.e., physical) symptoms.
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guilt, often exacerbated by anxiety about social exclusion, self-hatred and suicidal
tendencies. As with other methods, therefore, it is the intentionality and purposefulness of
degrading treatment, and the powerlessness of the victim, which are decisive for its
categorization as either torture or other ill-treatment.40
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46 International Convention for the Protection of All Persons from Enforced Disappearance, art. 2.
47 CAT/C/54/D/456/2011, para. 6.4.
48 A/67/279, para. 42. European Court of Human Rights, Soering v. the United Kingdom, Application
No. 14038/88, Judgment, 7 July 1989, para. 111.
49 See, most prominently, individual communications sent by the Special Rapporteur in the cases of
Chelsea Manning, communication No. AL USA 22/2019, 1 November 2019; and Julian Assange,
communications Nos. UA/GBR/3/2019, 27 May 2019; and UA GBR 6/2019, 29 October 2019.
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for purposes such as coercion, intimidation, deterrence or punishment, or for reasons related
to discrimination of any kind, it may amount to psychological torture.
E. Cybertorture
71. A particular area of concern, which does not appear to have received sufficient
attention, is the possible use of various forms of information and communication
technology (“cybertechnology”) for the purposes of torture. Although the promotion,
protection and enjoyment of human rights on the Internet has been repeatedly addressed by
the Human Rights Council (see A/HRC/32/L.20; and A/HRC/38/L.10/Rev.1), torture has
50 Physicians for Human Rights and Human Rights First, Leave No Marks: Enhanced Interrogation
Techniques and the Risk of Criminality (2007), p. 6.
51 International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Prosecutor v. Milorad
Krnojelac, Case No. IT-97-25, Judgment, 15 March 2002, para. 182; see also, European Court of
Human Rights, Ireland v. the United Kingdom, Application No. 5310/71, para. 168.
52 Large-scale historical examples of such abuse were the so-called “struggle sessions” used during the
Chinese Cultural Revolution (1966–1976) to publicly humiliate, abuse and torture political dissidents.
See Tom Phillips, “The cultural revolution: all you need to know about China’s political convulsion”,
The Guardian, 10 May 2016. For a recent individual case, see OHCHR, “UN expert says ‘collective
persecution’ of Julian Assange must end now”, 31 May 2019.
53 Pérez-Sales, Psychological Torture, p. 284.
54 Luban and Newell, “Personality disruption as mental torture”, pp. 363 and 374.
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been understood primarily as a tool used to obstruct the exercise of the right to freedom of
expression on the Internet, and not as a violation of human rights that could be committed
through the use of cybertechnology.
72. This seems surprising given that some of the characteristics of cyberspace make it an
environment highly conducive to abuse and exploitation, most notably a vast power
asymmetry, virtually guaranteed anonymity and almost complete impunity. States,
corporate actors and organized criminals not only have the capacity to conduct
cyberoperations inflicting severe suffering on countless individuals, but may well decide to
do so for any of the purposes of torture. It is therefore necessary to briefly explore, in a
preliminary manner, the conceivability and basic contours of what could be described as
“cybertorture”.
73. In practice, cybertechnology already plays the role of an “enabler” in the
perpetration of both physical and psychological forms of torture, most notably through the
collection and transmission of surveillance information and instructions to interrogators,
through the dissemination of audio or video recordings of torture or murder for the
purposes of intimidation, or even live streaming of child sexual abuse “on demand” of
voyeuristic clients (A/HRC/28/56, para. 71), and increasingly also through the remote
control or manipulation of stun belts (A/72/178, para. 51), medical implants and,
conceivably, nanotechnological or neurotechnological devices. 55 Cybertechnology can also
be used to inflict, or contribute to, severe mental suffering while avoiding the conduit of the
physical body, most notably through intimidation, harassment, surveillance, public shaming
and defamation, as well as appropriation, deletion or manipulation of information.
74. The delivery of serious threats through anonymous phone calls has long been a
widespread method of remotely inflicting fear. With the advent of the Internet, State
security services in particular have been reported to use cybertechnology, both in their own
territory and abroad, for the systematic surveillance of a wide range of individuals and/or
for direct interference with their unhindered access to cybertechnology. 56 Electronic
communication services, social media platforms and search engines provide an ideal
environment both for the anonymous delivery of targeted threats, sexual harassment and
extortion and for the mass dissemination of intimidating, defamatory, degrading, deceptive
or discriminatory narratives.
75. Individuals or groups systematically targeted by cybersurveillance and
cyberharassment are generally left without any effective means of defence, escape or self-
protection and, at least in this respect, often find themselves in a situation of
“powerlessness” comparable to physical custody. Depending on the circumstances, the
physical absence and anonymity of the perpetrator may even exacerbate the victim’s
emotions of helplessness, loss of control and vulnerability, not unlike the stress-augmenting
effect of blindfolding or hooding during physical torture. Likewise, the generalized shame
inflicted by public exposure, defamation and degradation can be just as traumatic as direct
humiliation by perpetrators in a closed environment.57 As various studies on cyberbullying
have shown, harassment alone in comparatively limited environments can expose targeted
individuals to extremely elevated and prolonged levels of anxiety, stress, social isolation
and depression and significantly increases the risk of suicide. 58 Arguably, therefore, much
more systematic, government-sponsored threats and harassment delivered through cyber-
technologies not only entail a situation of effective powerlessness but may well inflict
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levels of anxiety, stress, shame and guilt amounting to “severe mental suffering”, as
required for a finding of torture.59
76. More generally, in order to ensure the adequate implementation of the prohibition of
torture and related legal obligations in present and future circumstances, its interpretation
should evolve in line with new challenges and capabilities arising in relation to emerging
technologies not only in cyberspace, but also in areas such as artificial intelligence,
robotics, nanotechnology and neurotechnology, or pharmaceutical and biomedical sciences,
including so-called “human enhancement”.
59 Samantha Newbery and Ali Dehghantanha, “A torture-free cyber space: a human right”, 2017.
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not only in cyberspace, but also in areas such as artificial intelligence, robotics,
nanotechnology and neurotechnology, or pharmaceutical and biomedical sciences
including so-called “human enhancement”.
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